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April 2, 2003


The opinion of the court was delivered by: Ruben Castillo, United States District Court


Plaintiffs Krista P. and her parents Mr. and Mrs. P. ("Parents") seek judicial review of a Hearing Officer's ("HO") decision under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Presently before the Court is Plaintiffs' motion to admit additional evidence pursuant to 20 U.S.C. § 1415 (i)(2)(B)(ii) and motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendant Manhattan School District 114 ("District") also moves to admit additional evidence and to strike portions of Plaintiffs' submissions on summary judgment. For the reasons set forth herein, the Court denies Plaintiffs' motion to admit additional evidence. (R. 42-1.) The Court also denies in part and grants in part the District's motion to admit additional evidence, (R. 51-1), and motion to strike, (R. 52-1). Further, the Court denies Plaintiffs' motion for summary judgment, (R. 41-1), and grants summary judgment to the Illinois State Board of Education ("ISBE") and the District.*fn1


During the 2000-2001 school year, Krista attended the sixth grade at the District's Manhattan Junior High School. Krista had been receiving accommodations under Section 504 of the Rehabilitation Act of 1973 ("Section 504") since 1996, but had been found ineligible for special education services after case study evaluations ("CSE") in the first and fourth grade. In December 2000 Parents requested that the District conduct another OSE of Krista because of continued concerns with Krista's performance during the sixth grade. The District rejected Parents' request for another CSE and in response Parents requested an independent educational evaluation ("IEE"). The District in turn requested a due process hearing to deny Parents' request for an IEE. After a hearing on this issue and other issues submitted by Parents, HO Gail Tuler Friedman issued a decision concluding that the 1996 and 1999 CSEs and the decision to deny a CSE in 2000 were appropriate, that Krista was not entitled to an IEE at public expense and that the District had not violated various federal and state regulations. Parents currently challenge several aspects of the HO's decision. Initially, we summarize the record of Krista's educational history that was before the HO.*fn3

1. Background

A. Krista's First Grade Case Study Evaluation

In the fall of 1994 Krista entered kindergarten at the District's Anna MacDonald Elementary School, which she attended through the fifth grade. On December 12, 1995, when Krista was in the first grade, Mrs. P. referred Krista for a CSE, complaining that Krista was depressed over her inability to retrieve knowledge and that her self esteem was challenged. The District's Review Intervention and Assistance Team ("RIAT"), a consultation team of educational professionals, considered Mrs. P.'s referral. At the time of the RIAT consultation, Krista had been placed in the remedial reading group of the general education program due to her teacher's concerns with her reading and attending skills. Because of the teacher and parents' concerns, the MAT members decided to conduct a CSE, for which Mrs. P. provided formal consent on January 11, 1996. The signature page of the consent form states that Julia Wheaton, the school psychologist, explained parental rights and responsibilities, including the procedures for requesting an impartial due process hearing, to Mrs. P. Furthermore, Wheaton testified at the due process hearing that she explained the process and parental rights to Mrs. P.

The District then conducted a comprehensive CSE of Krista.*fn4 The District also conducted a psychological evaluation to assess Krista's cognitive functioning and educational and learning process. Wheaton administered the Wechsler Intelligence Test for Children III (WISC III), the Wechsler Individual Achievement Test (WIAT) and the Visual Motor Integration (VMI) test. The tests part of the 1996 CSE were administered in Krista's native language, English, and were non-discriminatory on a racial and cultural basis.

On February 26, 1996, the District convened a Multi-Disciplinary Conference (MDC) to review the components of the CSE and to determine whether Krista was in need of special education services. The District sent Parents a Parent Notification of Conference form that stated that they should call Wheaton if they had any questions, along with an attached form explaining the procedural safeguards available to parents. Mrs. P., along with Wheaton, Krista's teachers and special education teachers, participated in the MDC. Based on the reports of Krista's first grade teacher and remedial reading teacher and Wheaton's observation of Krista in the classroom on three occasions, the MDC agreed that the remedial reading program was adequately addressing Krista's needs. The MDC participants also reviewed the results of the standardized tests. As Wheaton explained at the due process hearing, while there was a discrepancy between Krista's superior performance (non-verbal) intelligence quotient (IQ) of 117 and her average achievement test scores of 89 to 100, Krista's achievement test scores were commensurate with her average verbal IQ of 95. Verbal IQ, Wheaton noted, is a better indicator of a child's school performance than non-verbal IQ. The MDC thus concluded that Krista did not need special education services; Krista's accommodations were appropriate, she was earning average to above-average grades and she was adequately progressing in the general education curriculum. Further, although Krista had been recently diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and had begun taking Ritalin, the MDC decided that it could not make an informed decision on Krista's eligibility for special education services without first giving that medical intervention time to take effect.

At the conclusion of the MDC, Mrs. P. received a copy of the MDC report along with a Parent Notification of Conference Recommendations form. Mrs. P. testified that the report contained: (1) a description of the action refused: Krista's placement in special education; (2) an explanation of the refusal: Krista was achieving in the average to above-average range and there were no adverse effects on her education performance; (3) a description of each evaluation, procedure, test, record and report used as a basis for the decision; and (4) a review of some additional considerations for students suspected of having learning disabilities. Another explanation of parental rights was attached to the notification form, which requested that Mr. and Mrs. P. review their rights and contact the school principal if they had any questions. Wheaton also reviewed parental rights with Mrs. P.

B. Section 504 Plan Implemented: Grades One through Four

Although Krista was found ineligible for special education services in 1996, she was found eligible for an educational plan under Section 504. Accordingly, the District conducted a Section 504 meeting on March 12, 1996 to develop an educational plan for Krista. The Section 504 team affirmed that Krista did not need special education and implemented several educational strategies to aid Krista, including continuation of the remedial reading program, teacher proximity during instructions and monitoring during seat work, positive comments to improve Krista's self-esteem, reduction and self correction of math assignments, allowance for grade modification and no grade penalization for letter reversals and incorrect capitalization. The meeting report also notes that Krista's teacher had observed great improvement since Krista started Ritalin about two weeks prior. By the end of first grade, Krista's teacher reported that her attentiveness had improved; her reading grade was an A− and her other grades were As and Bs.

Krista's Section 504 plan remained in effect during the second grade, where she earned A and B year-end grades in all subjects. Krista's school principal testified that she was not placed in the remedial reading program after the first grade; Krista's second-grade report card does not reflect that Krista's was in the remedial reading group.

In the fall of 1997 during Krista's third-grade year, the District held another Section 504 meeting to review Krista's performance under the Section 504 plan. The team concluded that because of Krista's past and current school performance, she would receive general education adaptations to help her succeed. With the adaptations in place, Krista received A and B grades, including a B in the average reading group. At the end of Krista's third-grade year, the District held another Section 504 meeting and concluded that Krista would continue in regular education classes with modifications (e.g., a seat near the front of classroom, shortened assignments if necessary, extra time for test completion).

C. Krista's Fourth Grade Case Study Evaluation

In the fall of 1998, Mrs. P. referred Krista for a second CSE because she was concerned with Krista's learning process and what she perceived as dyslexic-type patterns in Krista's work. Prior to this second referral, Wheaton again explained Mrs. P. "s rights to her. In response to Mrs. P's referral, Principal Butters met with Mrs. P. to discuss the need for a CSE. Based on his discussions with Krista's teachers and his review of her grades, Principal Butters felt that a CSE was not warranted, but decided to go ahead with one because Krista had not been tested since the first grade and he hoped they could identify any problem, if there was one, and alleviate Mrs. P's concerns. As part of the CSE, the District conducted speech, language and psychological evaluations, including standardized tests, as well as an evaluation of Krista's educational and learning processes.

On January 28, 1999, the District held a MDC to discuss the results of Krista's second CSE. Mrs. P. and members of the school staff participated in the MDC and reviewed all the CSE components. The team noted that Krista was earning A and B grades in all subjects, including in the second-to-highest reading group and in English without any modified instruction. Krista's fourth grade teacher also reported that Krista's written expression was "fine." (R. 30-31, Admin. R. at 823, MDC Report.) The MDC further noted that Krista's test scores were commensurate with her first grade CSE results. Once again, Krista's performance (non-verbal) IQ of 121 exceeded her verbal IQ of 101 and her achievement test and VMI scores were in the average range. Krista's speech and language evaluation results were largely consistent with the results of the psychological evaluation.

The team once again concluded that Krista was not in need of special education services. Specifically, Wheaton testified that although there was an aptitude-achievement discrepancy, Krista's achievement scores were in the average range and the discrepancy did not significantly impact her school performance because she maintained average to above-average grades. The MDC report recommended the continuation of the Section 504 accommodations to help Krista succeed in school. Mrs. P. received a written notice that Krista had been found ineligible for special education services as well as the MDC report, which explained the various tests performed and why Krista was ineligible for services.

D. Section 504 Plan Continued: Fourth and Fifth Grade

During the fourth and fifth grades, Krista continued to receive As and Bs, including in the second-highest of four reading groups. In the spring of Krista's fourth and fifth grade years (1999 and 2000), the District held Section 504 meetings to review and update her Section 504 plan. Krista's accommodations were found to be successful at both meetings and her Section 504 plan was continued. Krista's fourth grade teacher opined that Krista did very well in class, that her writing was adequate and that she worked at a slow pace because she was a perfectionist. Krista's fifth grade teacher concurred that Krista was a good student but that she had problems paying attention during class. Krista's average standardized test scores during the fourth and fifth grades were in the average to above-average range, although the tests revealed that she had not mastered a few subtest areas. Wheaton testified, however, that the test results showed no areas of concern.

E. Referral for a Third Case Study Evaluation

In May 2000 Mrs. P. sent Principal Butters a letter requesting a third CSE or "for the school to suggest an outside evaluation by an LD specialist in reading." (Id. at 840, Mrs. P. Letter to Principal Butters.) Although Principal Butters reported to Mrs. P. that Krista's teachers did not feel another CSE was warranted, he sent Mrs. P. the CSE referral forms on May 31, 2000, noting Mrs. P.'s right as a parent to request a case study ...

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